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Wednesday, November 21, 2007

Ind. Decisions - 7th Circuit decides one Indiana case today

In USA v. Parker (ND Ind., Judge Sharp), a 15-page opinion, Judge Sykes writes:

Jesse James Parker was convicted of making a false statement on a federal firearms form, being a felon in possession of a firearm, and being an illegal drug user in possession of a firearm. He raises four challenges to his convictions and sentence: that his trial violated the Speedy Trial Act, that his firearm possession convictions are multiplicitous, that he received ineffective assistance of counsel, and that his term of supervised release was imposed in violation of United States v. Booker, 543 U.S. 220 (2005).

We reject all but the multiplicity challenge. We agree that the two firearm possession convictions—under 18 U.S.C. § 922(g)(1) and (3)—are multiplicitous, as they arise from a single incident of firearm possession. Parker did not raise the multiplicity objection in the district court, however, so our review is for plain error. Parker was sentenced to concurrent prison terms on these counts but was subjected to an additional $100 special assessment for the second firearm possession conviction; we held in United States v. McCarter, 406 F.3d 460, 464 (7th Cir. 2005), that this is not a sufficiently serious error to warrant correction under the plain-error standard. See also United States v. Baldwin, 414 F.3d 791, 796 (7th Cir. 2005) (following McCarter). We now conclude that this holding is inconsistent with Supreme Court precedent and out of step with other circuits that have addressed the question. We therefore overrule this aspect of McCarter and Baldwin. The case is remanded with instructions to vacate the sentence on one of the firearm possession counts and merge the two convictions.

Posted by Marcia Oddi on November 21, 2007 02:38 PM
Posted to Ind. (7th Cir.) Decisions